Defense Digest

A Horse Is Still A Horse In Pennsylvania: Did The Superior Court Close The Barn Door?

"A horse is a horse, of course, of course…"
[Mr. Ed Theme, Jay Livingston & Ray Evans (© November 4, 1960)]

In her 2003 lawsuit, Sharon Kinley, (Kinley v. Bierly, et al., 2005 PA Super 168, 2005 Pa. Super. LEXIS 980 (Pa. Super. Ct. 2005), challenged the principle embodied, not only by the theme song, but also by the long-established law of the Commonwealth: a horse is a horse presumed not to be dangerous unless known to have been previously vicious toward people. Specifically, the question before the court was whether a horse is known or should be known to be dangerous simply on the basis of its gender and breed.

During the summer of 2002, Sharon Kinley stabled her mare "Heidi" in a barn owned by David Schon. Two other horses were also stabled there: "Dollar," an Arabian stallion owned by Sharon Bierly, and "Bob," a gelding of unknown breeding. Ms. Kinley was in the habit of taking a bowl of sweet feed either out into the pasture or, on rainy days, into a stall to hand feed the horses. The latter, in particular, may well have been quite unwise; however, none of the horses had ever behaved aggressively toward her or anyone else until the fateful day. On July 29th, she took a bowl of feed into a stall with Heidi and Dollar. Much to his dismay, Bob was shut out. As she hand-fed Dollar and Heidi in the stall, the now-displeased Bob kicked the wall of the stall, greatly disturbing Dollar. He bit Ms. Kinley on the upper left arm twice, inflicting deep and nearly full circumference lacerations to her upper arm.

Ms. Kinley filed suit against both Sharon Bierly, Dollar's owner, and David Schon, the property owner, on the theory that they knew or should have known that Dollar had aggressive and vicious tendencies. Mr. Schon was represented by Marshall, Dennehey, Warner, Coleman & Goggin. Because there was no evidence that Dollar had previously behaved in a manner from which anyone knew or should have known that he would act viciously, Ms. Kinley's theory relied completely upon the proposition that stallions, and particularly Arabian stallions, are known as a gender and breed to be vicious and aggressive. She alleged that Ms. Bierly and Mr. Schon had notice of the horse's "vicious propensities" and were, thus, liable in negligence. In particular, Mr. Schon was alleged to be negligent with respect to Ms. Kinley as a business invitee because Dollar constituted a hazardous condition on his property.

Pennsylvania common law in the area of animal liability, and in particular equine liability, derives from common law older than the Commonwealth itself. Under that common law, an owner of a domestic animal may only be held liable for an animal's vicious act if the owner knew or should have known from the prior behavior of that animal that it was prone to abnormal aggression or had vicious tendencies. Although 44 states have enacted statues protecting horse and stable owners from liability arising from the inherent hazards of equine activities, Pennsylvania has not, and the common law governs these cases.

Defense motions for summary judgment were filed on the basis that there was no evidence of prior behavior by Dollar that would give notice of a vicious propensity. Although Ms. Kinley's expert opined in her report that the practice in the horse-boarding industry was to take special precautions with stallions, she also acknowledged that every horse has its own "personality." Judge Dudley Anderson of the Court of Common Pleas of Lycoming County granted the defendants' motions for summary judgment with a comprehensive opinion. Ms. Kinley appealed to the Superior Court.

At argument, Ms. Kinley's counsel acknowledged that he sought a modification of existing common law in this suit. On behalf of Mr. Schon, the defense pointed out that the change in the law requested by Ms. Kinley was not only contrary to hundreds of years of well-reasoned common law, but it would impose notice of vicious propensities of every stallion on every owner of a stallion in the Commonwealth and notice of an unreasonably hazardous condition as a matter of law to every landowner in Pennsylvania who has a stallion on their property. Ms. Kinley's counsel also contended that opinions in the nineteenth century indicated common knowledge that stallions had "vicious" tendencies. The usage of the term "vicious" in those opinions, however, did not refer to dangerous aggression toward humans; rather, the usage reflected a now-arcane reference to what would now best be termed as "unruly."

In its opinion affirming the dismissal of the lawsuit, the Superior Court characterized Ms. Kinley's argument that the law should be changed as a request for judicial notice of the vicious character of stallions in general. Although Judge Bowes, writing for the court, agreed that the "spirited" nature of stallions as a class is well known, the proposition that "everyone knows stallions are vicious and will bite is simply not true." The court reaffirmed the long-standing requirement that evidence of the particular animal's vicious propensities before liability of the possessor can attach, stating that Ms. Kinley's "tenet that Dollar's status as a stallion establishes liability cannot succeed, and in the absence of evidence of Dollar's vicious tendencies, summary judgment was properly granted."

*Dave, an associate in our Williamsport, PA office, can be reached at (570) 326-9067 or dlingenfelter@mdwcg.com.